community consent index 2015: oil, gas, and mining company public positions on free, prior, and...

8/20/2019 Community Consent Index 2015: Oil, gas, and mining company public positions on Free, Prior, and Informed Cons…

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207 OXFAM BRIEFING PAPER 23 JULY 2015

www.oxfam.org

Near the community of Ka Chok, villagers are concerned about a mining concession granted to a Vietnamese company. Local farmers werenot consulted about the concession and worry that they will not have access to farm lands in the forest. Photo: Patrick Brown/Oxfam

COMMUNITYCONSENT INDEX 2015Oil, gas, and mining company public positions on Free, Prior,and Informed Consent

As large-scale oil, gas, and mining projects move to increasingly remote areas, they threaten

to generate adverse impacts for the local communities and indigenous peoples who inhabit

these areas. For many project-affected communities, Free, Prior, and Informed Consent (FPIC)

represents a critical tool for ensuring that they have a say in whether and how extractive

industry projects move forward. This policy brief examines publicly available corporate

commitments regarding community rights and community engagement. The results suggest

increasing commitments to FPIC in the mining sector but disappointing trends in relation to

the oil and gas sector and women’s participation in decision making.


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CONTENTS

Summary ............................................................................................... 3

1 Introduction........................................................................................ 6

About this document ........................................................................... 8

Recent policy advances .................................................................... 11

2 Key findings ..................................................................................... 14

Company commitments to FPIC for indigenous peoples .................. 14

Company commitments on engagement with all project-affectedcommunities ...................................................................................... 19

Broader human rights commitments .................................................. 23

Company commitments regarding gender issues ............................. 28

3 Concluding remarks and recommendations ................................. 30

Annexes .............................................................................................. 33

Notes ................................................................................................... 36


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SUMMARY As large-scale oil, gas, and mining projects move to increasingly remote

areas, they threaten to generate adverse impacts on the land and natural

resources of the local communities and indigenous peoples who inhabit

these areas. For many project-affected communities, Free, Prior, andInformed Consent (FPIC) represents a critical tool for ensuring that they

have a say in whether and how extractive projects move forward.

Oxfam defines FPIC as the principle that indigenous peoples and local

communities must be adequately informed about projects that affect their

lands in a timely manner, free of coercion and manipulation, and should

be given the opportunity to approve or reject a project prior to the

commencement of all activities. For indigenous peoples, FPIC is

established as a right under international law, reflecting their standing as

distinct, self-determining peoples with collective rights. However, FPIC is

emerging more broadly as a principle of best practice for sustainabledevelopment, used to reduce conflict and increase the legitimacy of the

project in the eyes of all stakeholders.

This policy brief examines publicly available corporate commitments and

policies regarding community rights and community engagement with a

particular focus on FPIC – the gold standard in terms of extractive

industry community engagement practices.1 The research includes 38 oil,

gas, and mining companies, and provides an update to our 2012

Community Consent Index. The main purpose is not to evaluate

company commitments in practice but to highlight changing trends

across the industry in order to encourage a race to the top among

company policies.

This report suggests that extractive industry companies are increasingly

seeing the relevance of FPIC to their operations. This includes more

robust engagement with the concept and an increasing number of

companies using the term. The number of companies with commitments

to FPIC has almost tripled since 2012. Importantly, this list now also

includes smaller, non-ICMM companies—a promising development that

again highlights wider acceptance of FPIC within the industry. However,

this trend masks a number of issues. First, the oil and gas sector is

clearly lagging in adopting FPIC policies, with no public commitments

from any of the companies included in this report. Second, although

policy commitments to FPIC are increasing, these lack detailed

implementation guidance, and some companies have reservations

relating to the core right to withhold consent. Companies that use vague

and hedging language with regard to FPIC risk abusing a concept that

has been defined clearly by international bodies and law.

No companies reviewed for this report have made public commitments to

uphold FPIC for non-indigenous project-affected people. However,

community engagement is recognized as being crucially important for thesector, and the emergence of language around community ―support‖ and

―agreement‖ shows a general upward trend. Many company policies now


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require more than mere community consultation and require companies

to seek community support as well.

Unfortunately, there is very little consensus across the industry about the

language used in community support. Definitions of terms such as ―broad

community support‖ and ―social license to operate‖ vary widely among

companies. This is problematic on a number of fronts. Without clear

commitments from companies to incorporate community input andrespect community decisions, and clear and public guidelines on

consultation process, it will be difficult for affected communities to

influence company plans, participate in decision-making processes, and

negotiate benefit-sharing agreements. Furthermore, without a shared

understanding of the meaning behind these community engagement

concepts, the risk of conflict among and within communities is increased

and corporate accountability is weakened.

Oxfam has developed a spectrum of community engagement applicable

to extractive industry projects that ranges from low (one-way information

sharing) to high levels (FPIC). The figure below summarizes companies‘public commitments along the spectrum. Note that companies may refer

to various levels of engagement in their public policies and statements

but are listed here only under their highest-level commitment.

Importantly, all 38 companies in the sample at least commit to

consultation or dialogue with communities.

Figure 1. Oxfam’s community engagement spectrum—public commitments

Although the industry is changing, much remains to be done to ensure

full recognition of FPIC. Those companies that have not yet done so

should adopt an explicit and unambiguous policy commitment to FPIC

and develop publicly available implementation guidelines. All companies

should conduct thorough and participatory monitoring and evaluation of

FPIC processes being implemented. Companies should also developclear and overarching commitments to gender that respect the rights of

Those companies thathave not yet done soshould adopt an explicitand unambiguous policycommitment to FPIC anddevelop publicly

available implementationguidelines.


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both women and men and involve both women and men in consultationand decision-making processes. Oxfam hopes that this report will serveas a tool for civil society organizations working to improve the social per-formance and policy of extractive companies, and for companies aimingto build trust with local communities and reduce the risk of social conflictaround their projects.


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1 INTRODUCTION Although extractive industry companies profit from the minerals, oil, and

gas sourced from resource-dependent countries, poor people living in

these countries and on lands affected by these projects often see little

benefit from the wealth generated by these natural resources. The huntfor resources inevitably leads to contact between extractive companies

and local communities, and as businesses foray deeper into remote

regions to keep pace with rising demand, the potential for social conflict

increases. Project-affected communities across the world are demanding

a greater voice in extractive operations. Their meaningful engagement

throughout the project cycle not only mitigates potential negative impacts

but can also increase the likelihood that a community can benefit from an

extractive project. For many project-affected indigenous peoples and

local communities, Free, Prior, and Informed Consent (FPIC) represents

a critical tool for ensuring that they have a say in whether and howextractive industry projects move forward.

Box 1. Free, Prior, and Informed Consent

Oxfam defines Free, Prior, and Informed Consent (FPIC) as the principle

that indigenous peoples and local communities must be adequately

informed about projects that affect their lands in a timely manner, free of

coercion and manipulation, and should be given the opportunity to approve

or reject a project prior to the commencement of all activities. FPIC

processes must be ongoing. Project developers should facilitate community

participation in decision making throughout the life of the project, and

communities should have the opportunity to give or withhold their consent

at each phase of project development where changes to project design

entail potential impacts on communities.

For indigenous peoples, FPIC is established as a right under international

law. Indigenous peoples‘ rights under international law reflect their standing

as distinct, self-determining peoples with their own distinct decision-making

processes, laws, practices and institutions, and collective territorial, self-

governance, and cultural rights.

However, FPIC is emerging more broadly as a principle of best practice for

sustainable development, used to reduce social conflict as well as increasethe legitimacy of the project in the eyes of all stakeholders and rights-

holders. Local communities face significant risks related to extractive

industry projects yet often have little influence on project decisions.

Governments approve projects in capital cities, arguing that these projects

contribute to a ―public purpose‖ to justify compulsory land acquisition. This

premise proves tenuous, given the potential significant environmental and

social impacts associated with extractive projects, and in light of the well-

documented ―resource curse‖ phenomenon whereby developing countries

that rely heavily on oil and mineral exports tend to have relatively poor

development outcomes. As a best practice, all local communities that face

potential significant adverse impacts from oil, gas, and mining projects

should have the opportunity to access full information, participatemeaningfully in impact assessment and negotiations, and give or withhold

their consent to project development.


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Extractive industry projects place intense pressure on land. Oxfam‘s view

is that consent should be obtained by governments when land-use

decisions are being made, including before the assignment of

concessions and blocks, which occurs prior to a specific project being

approved.

The benefits of FPIC flow both ways. Companies that obtain community

consent and respect the community‘s rights insulate themselves fromexpensive conflicts that would threaten profits and in some cases make

projects economically infeasible. In recent years, many businesses have

seen projects crumble as communities have found the capacity and will

to oppose and shut down operations. Mining and energy companies have

lost millions of dollars invested into projects that have experienced

clashes with local populations, to say nothing of the costly reputational

hits these conflicts engender. A recent study found that a world-class

mining project stands to lose approximately $20 million per week in lost

productivity as a result of production delays stemming from social

conflict.

2

FPIC thus serves as an invaluable risk management tool forextractive companies. Ensuring that projects begin with free and fully

informed community consent helps protect against the high cost of future

tension and conflict.

FPIC is not simply good business: Embracing FPIC enables companies

and states to avoid infringing on human rights. The United Nations

Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in

September 2007, establishes FPIC as a right for indigenous peoples and

as necessary to ensure protection of their other self-determination-based

rights. With regard to extractive industry projects in particular, UNDRIP

calls on states to consult with indigenous peoples through theirrepresentative institutions to obtain their FPIC ―prior to the approval of

any project affecting their lands or territories and other resources,

particularly in connection with the development, utilization or exploitation

of mineral, water, or other resources.‖3 Thus, states must ensure that

indigenous peoples have the opportunity to approve or reject extractive

industry projects that threaten their land and resources. The International

Labour Organization (ILO) Convention No. 169 (ILO Convention 169)

requires FPIC in cases of resettlement and calls on governments to

consult with indigenous and tribal peoples prior to allowing exploration or

exploitation of mineral or subsurface resources, with the objective ofachieving agreement or consent.4 In addition, human rights bodies have

interpreted treaties such as the International Covenant on Civil and

Political Rights, International Covenant on Economic Social and Cultural

Rights, and International Convention on the Elimination of All Forms of

Racial Discrimination as requiring indigenous peoples‘ FPIC in the

context of extractive industry projects impacting on their rights.5

Unfortunately, most states have not incorporated FPIC into their national

laws. However, the Philippines and Northern Territory of Australia offer

notable exceptions. The Indigenous Peoples Rights Act of 1997 in the

Philippines requires FPIC, although implementation has been achallenge.6 In Australia, the Aboriginal Land Rights (Northern Territory)

Act of 1976 establishes special protections for traditional aboriginal

The benefits of FPICflow both ways.Companies that obtaincommunity consent andrespect the community’srights insulatethemselves fromexpensive conflicts thatwould threaten profitsand in some cases makeprojects economicallyinfeasible.


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owners, requiring project proponents to obtain the consent of land

councils established to protect the interests of these owners.7 In addition,

in Latin America, most countries have ratified ILO Convention 169 and

assign constitutional rank to international human rights treaties. In

Bolivia, UNDRIP has the rank of statutory law. In recent years Peru and

Chile developed consultation regulations modelled after ILO Convention

169, and Colombia‘s Constitutional Court has issued jurisprudence

requiring the halting of projects for lack of FPIC.8

Although states have the duty to protect against human rights abuses by

third parties, companies likewise shoulder human rights responsibilities

that touch upon land and natural-resource access. The UN Guiding

Principles on Business and Human Rights call on corporations to respect

human rights.9 For extractive companies, this means ensuring that its

operations do not infringe upon local communities‘ rights to food, water, a

healthy environment, housing, culture, and development. In the case of

indigenous peoples, this means that businesses must respect the rights

recognized in ILO Convention 169 and UNDRIP. Obtaining FPIC offerscompanies one way to minimize the risk that their operations will violate

these human rights.

A warning sign, Sadiola Hill Gold Mine, western Mali; August 2006. Photo: Brett Eloff.

About this document

This policy brief examines publicly available policies regarding

community rights and community engagement of 38 oil, gas, and mining

companies. It aims to document and influence corporate policies and

public statements regarding FPIC, and community engagement more

broadly. As it is an update to the 2012 Community Consent Index, it not

only allows comparison across the sector but also provides analysis of

how policies and commitments have changed over time. Although

relevant to projects like dams and large-scale agriculture, this document

focuses on development projects in the oil, gas, and mining sectors in

particular.


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Oxfam views a comprehensive and publicly available policy framework

as vital to promoting corporate accountability and respect for human

rights. This applies not only to companies but also to governments,

donors, and international financial institutions. Our attention to policies

should not suggest that these are more important than the

implementation of these commitments or the practice on the ground.

Implementation is critical: done well, FPIC offers the potential for lasting

agreements with indigenous peoples and local communities, whereas

failure to implement FPIC can lead to human rights violations and costly

project delays and stoppages. However, this report seeks to highlight

changing trends in public commitments across the industry with the aim

of increasing best practice across the sector.

The report is intended to be of use for a number of different stakeholders.

For civil society, the report can serve as an advocacy and engagement

tool for their work in improving the social performance and policy of

extractive companies and defending community rights. For companies,

the report can assist in building trust amongst stakeholders andparticularly affected communities, as well as to mitigate risks of social

conflict and reputational damage. A secondary audience for this report

includes government representatives, investors, academics, and media.

The report can be used to better understand the positions and

commitments of companies with regard to FPIC, human rights,

community engagement, and gender.

This report evaluates public corporate commitments with relation to a

spectrum of potential approaches to community engagement. The

International Association for Public Participation‘s spectrum of public

participation begins with low-level, one-way participation (to inform) andends with enabling the public to have final decision-making authority (to

empower).10 Similarly, Oxfam has developed a spectrum of community

engagement applicable to extractive industry projects which ranges from

low (information sharing) to high levels (FPIC). Simply providing

information to communities is not sufficient, and even processes of two-

way consultation and dialogue fall short unless they enable communities

to participate fully in making decisions about whether and how the project

moves forward. Figure 2 depicts how Oxfam views the community

engagement spectrum broadly. This report will describe how public

corporate commitments fall along this spectrum.

Figure 2. Oxfam’s community engagement spectrum

Oxfam views acomprehensive andpublicly available policyframework as vital topromoting corporateaccountability and

respect for humanrights.


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Oxfam sees policies as important indicators of a company‘s

commitments, which can usefully guide practice in the field. The United

Nations Global Compact‘s ―Business Reference Guide on the United

Nations Declaration on the Rights of Indigenous Peoples‖ calls on

companies to commit to obtain and maintain the FPIC of indigenous

peoples for projects that affect their rights, and to adopt and implement a

formal policy addressing indigenous peoples‘ rights. It provides several

examples of the value of companies establishing formal policy

commitments, such as publicly confirming the business commitment to

meet its responsibility to respect indigenous peoples‘ rights, establishing

consistent policy regardless of country-level staff turnover, helping to

identify policy gaps and risks, building trust with external stakeholders,

and providing reputational benefits.11

Oxfam believes that policies should be public since transparency is

critical to giving local communities a more meaningful role in decision

making and control over their resources. Transparency also helps build

trust between companies and communities and other externalstakeholders, and provides a platform for stakeholders to hold the private

sector more accountable.

Companies reviewed were selected based on a number of criteria and

factors, including:

• Size: In terms of market capitalization, we include some small- and

mid-tier companies for diversity but prioritize larger companies.

• Membership in industry associations, including the International

Council on Mining and Metals (ICMM) and IPIECA, the global oil and

gas industry association for environmental and social issues.• Geographical representation: Oxfam looked for diversity in terms of

the location of company headquarters and since 2012 expanded the

scope of companies to include those from emerging markets—the

report includes companies from Brazil and China.

• A mix of companies from the mining and oil and gas sectors.

• Relevance to countries and communities in which Oxfam has an

extractive industry program or which have had engagement with

Oxfam or Oxfam partners.

This method makes it impossible to speak statistically about the field, but

the findings nonetheless provide a revealing snapshot.

Best practice would be for companies to develop robust policies

consistent with international standards, with clear and public

implementation guidance, endorsed by the highest level of the company.

These should be broadly disseminated. For the purposes of this report,

the authors reviewed published company policies and statements,

websites, and annual reports and sustainability reports and recorded

public commitments on the following issues: FPIC, indigenous peoples‘

rights, human rights, gender, and broader community engagement.

Oxfam conducted desk research and interviews between June 2014 and April 2015.

Oxfam believes thatpolicies should bepublic since

transparency is criticalto giving localcommunities a moremeaningful role indecision making andcontrol over theirresources.


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We contacted every company and invited them to discuss their FPIC or

other community engagement policies with us. Companies interviewed

and date of interview can be found in Annex B.

Prior to publication, Oxfam shared relevant draft findings with each of the

companies that participated in the research to verify the information

contained herein; the authors received feedback from 24 companies. If

any pieces of information were overlooked, Oxfam welcomes feedbackfrom companies or other stakeholders to supplement the information

provided here. This policy briefing will be updated on a periodic basis.

Recent policy advances

In addition to international law obligations, recent policy advances

reinforce the FPIC trend. For example, in 2012 the World Bank‘s private

lending branch, the International Finance Corporation (IFC), updated its

―Sustainability Framework‖ to require corporate loan recipients whose

operations affect indigenous peoples to implement FPIC. The IFC also

requires that borrower companies planning projects with a high risk ofadverse impacts obtain broad community support from non-indigenous

communities. Although not equivalent to FPIC, this should entail

engaging in informed consultation and participation with local community

members. IFC plays an important role as a standard setter for companies

and banks, including 80 Equator Principle Financial Institutions12 that

have recognized the requirement for FPIC in their voluntary

environmental and social standards, known as the Equator Principles.13

Mining company associations are likewise embracing FPIC. The

International Council on Mining and Metals (ICMM) released its

Indigenous Peoples and Mining Position Statement in May 2013,committing members to an FPIC process in which ― indigenous peoples

can give or withhold their consent to a project, through a process that

strives to be consistent with their traditional decision-making processes

while respecting internationally recognized human rights and is based on

good faith negotiation.‖14 This position statement obligates member

companies to begin integrating FPIC into their practices at more than 800

project sites worldwide. These commitments came into full effect in May

2015. Following a consultation with stakeholders in early 2015, ICMM will

release guidance for companies to accompany the position statement.

Another mining company association, the China Chamber of Commerceof Metals, Minerals and Chemicals Importers and Exporters (CCCMC),

calls on companies to ―protect the rights for free, prior and informed

consent of local communities including indigenous peoples.‖15

The multi-stakeholder group called the Initiative for Responsible Mining

Assurance (IRMA), which includes mining companies and non-

governmental organizations, is formulating a draft Standard for

Responsible Mining that directs members to ―initiate FPIC scoping‖ prior

to any land disturbances and outlines minimum steps that mining

companies must take to comply with this directive.16 The Kellogg

Innovation Network: Mining Company of the Future process convenedthrough Northwestern University‘s Kellogg School of Management

included representatives of mining companies, contractors, suppliers,


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researchers, academics, nonprofits, and indigenous peoples. In 2014,

this multi-stakeholder initiative produced a Development Partner

Framework, which included FPIC as a key recommendation.17

Oil and gas groups promote less progressive policies with regard to

FPIC. IPIECA, the global oil and gas industry association for

environmental and social issues, acknowledges the importance of

constructive community consultation and advocates for ―ongoing two-waycommunication about project impacts and benefits.‖ IPIECA released a

compilation of best practices for companies engaging with indigenous

peoples, which contains an overview of international standards and best

practices related to FPIC. It also states on its website that it is currently

conducting research on FPIC.18 However, IPIECA falls short of

recommending specific policies or practices and does not bind members

to IPIECA recommendations.

Other sectors outside of the extractive industry have also incorporated

FPIC into company policies, further demonstrating that it has become the

new benchmark of responsible business practice. Of the food andbeverage ―big 10,‖ all have now incorporated FPIC into their policies or

commitments for at least one commodity.19 Some companies have gone

further. Industry giants Coca-Cola and PepsiCo, for example, have

committed to zero tolerance for land grabbing throughout their supply

chains, which means that they will only work with suppliers and business

partners to guarantee that they acquired land in accordance with FPIC.20

Note that this commitment extends to projects affecting not only

indigenous peoples but also non-indigenous communities. Following suit,

Illovo, Bunge, Cargill, and Wilmar have also recently adopted public

commitments to FPIC.21

Some multi-stakeholder initiatives outside the context of extractive

industries also use FPIC terminology. The Forest Stewardship Council,

Roundtable on Sustainable Palm Oil, and UN World Commission on

Dams each call for FPIC in their requirements or recommendations.22

The first two extend the application of FPIC beyond indigenous peoples

to all project-affected local communities.

Even the banking industry is getting on board: In 2014, two of Australia‘s

―Big 4‖ banks, Westpac and National Australia Bank (NAB), took

important first steps on land grabbing in their new lending policies. NAB

clearly stated its position on land acquisitions, and Westpac expressly

recognized the right of local communities to provide or withhold their

FPIC on any agribusiness land transactions.23 In Canada, TD also

commits to FPIC and claims to be ―working to promote understanding of

FPIC in the business community.‖24 FPIC is being embraced by

extractive and non-extractive companies alike.

Regional institutions also call on states and companies to implement

FPIC. In Africa, several regional institutions have called for FPIC

processes when natural resource projects have the potential to affect

local communities, regardless of whether affected communities identifythemselves as indigenous peoples. Since 2009, the Economic

Community of West African States, African Commission of Human and

In Africa, severalregional institutionshave called for FPICprocesses when naturalresource projects havethe potential to impactlocal communities,regardless of whetheraffected communitiesidentify themselves asindigenous peoples.


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Peoples Rights, Pan-African Parliament, and Africa Mining Vision have

all called on states to respect the FPIC of local communities that face

potential impacts from mining, hydrocarbon development, or natural

resource projects more broadly.25 For the Americas, the Inter-American

Court of Human Rights has issued findings calling on states to implement

FPIC for projects with potentially significant impacts on indigenous

peoples or groups which share similar economic, social, and cultural

characteristics with indigenous peoples.26

In Latin America and Asia, indigenous peoples and civil society

organizations have for many years urged companies and governments to

respect FPIC for indigenous peoples. Similar efforts have emerged in

Africa in recent years but with broader application for FPIC than

indigenous peoples. The 2013 Declaration of the African Coalition for

Corporate Accountability, which includes 89 civil society organizations

working on extractive industry and other issues from 28 countries across

the African continent, calls for FPIC for every aspect of projects likely to

affect communities.

27

The coalition does not limit FPIC to indigenouspeoples.

FPIC is emerging as a best practice for safeguarding the human rights of

all communities affected by extractive industry projects. It not only serves

as a tool to protect indigenous peoples and local communities that stand

to be affected by extractive operations, but it also is a financially savvy

means of mitigating the risk that projects will run into costly conflict.

Given its place under international law, FPIC must be respected by

states and corporations alike. As we will describe in more detail below,

Oxfam fears that growing adoption of policies may not be matched by

practice. Crucially, more resources will be needed for verification andmonitoring as companies move to implement their FPIC policies.


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2 KEY FINDINGSThe following section presents an overview of the key findings from this

research. For more information about the findings and for civil society

resources on FPIC, please see our FPIC toolkit, available online at

www.oxfam.org/communityconsent.

Company commitments toFPIC for indigenous peoples

This section examines extractive industry companies‘ public

commitments to FPIC. At present, companies with FPIC commitments

limit their application to projects that affect indigenous peoples.

Fourteen companies have made public commitments to FPIC

The mining industry is growing increasingly accepting of FPIC for

indigenous peoples. Since the 2012 version of this report, the number ofextractive industry companies with public commitments to FPIC has

increased from five to 14.28 The way in which companies express their

public commitments to FPIC varies, with some commitments included in

human rights or community engagement policies and others included as

brief mentions on websites or in sustainability reporting.

Eleven of the 14 companies with FPIC commitments belong to ICMM. In

fact, of the 13 ICMM members surveyed, just two— AngloGold Ashanti

and Areva—have yet to adopt an explicit FPIC policy commitment. In an

interview with AngloGold Ashanti, the company said that it is updating its

management standard on indigenous peoples to include a commitmentto FPIC, in line with the ICMM position statement and updated IFC

Performance Standard 7.29

The list of companies with public FPIC commitments also includes mid-

tier companies: Angkor Gold, PanAust,30 and OceanaGold. This

demonstrates that it is possible for smaller companies to commit to FPIC.

Figure 3. Corporate commitments to FPIC for projects affecting

indigenous peoples

http://www.oxfam.org/communityconsenthttp://www.oxfam.org/communityconsent


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First Quantum Minerals, a Canadian mining company, does not have a

public FPIC policy; however, it claims to have implemented an FPIC

process to manage the resettlement of indigenous communities affected

by their Cobre Panama mine, in Panama.31 Notably, a 2013 research

report highlighted significant divergence between the perspectives of an

indigenous leader and the company with regard to the nature of the

consent-seeking process for this project.32 For projects affecting

indigenous peoples, the company commits to ―use reasonable efforts to

respect their standing as distinct, self-determining peoples with collective

rights.‖33

No companies have adopted a public commitment applying FPIC to all

local communities (beyond indigenous peoples) affected by their

projects. Angkor Gold stated that their FPIC commitment would not be

limited to projects that affect indigenous communities,34 but their policy is

ambiguous on this point35 and their mining activities currently overlap

only with indigenous lands in Cambodia, so the wider application of their

policy to non-indigenous communities remains untested. The introductionof the requirement to obtain indigenous peoples‘ FPIC is a significant and

welcome development that emerges from the recognition of indigenous

peoples‘ collective self-determination rights. However, Oxfam believes

that the failure to address the relevance of FPIC with non-indigenous

local communities whose rights are affected by extractive industry

projects is a major gap in corporate policies and represents a missed

opportunity for companies to build trust and facilitate shared decision

making.

Table 1. Corporate commitments to FPIC for projects affecting

indigenous peoples

Mining companies Angkor Gold

Anglo American

Barrick Gold

BHP Billiton

Freeport-McMoRan

Glencore36

Goldcorp

Gold Fields

MMG

Newmont

OceanaGold

PanAust

Rio Tinto

Teck

Oil companies –


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Existing corporate FPIC commitments provide little detail about

how FPIC will be implemented in practice

The growing number of mining company commitments to FPIC provides

an encouraging signal that industry has begun to acknowledge and

prioritize FPIC. However, even with several early adopters of FPIC in

principle, many companies still claim to be identifying how FPIC can be

implemented. Across the board, the FPIC commitments we reviewed failto provide significant detail regarding implementation. No companies

offer unequivocal commitments to withdraw from a project if a community

decides to withhold consent. Several companies seemed reluctant or

unclear as to whether they will uphold the right to withhold consent.

Rio Tinto, an early adopter of FPIC, offers one exception in terms of

transparency in that it makes public its guidelines for managers on

agreement-making processes used in situations requiring community

consent. However, on the issue of FPIC in particular, the guidance is

somewhat ambivalent. On one hand, it states that the FPIC principle

requires that development proposals only proceed ―with the freely givenconsent of the affected communities.‖ On the other , it claims that it does

not intend that its FPIC implementation ―contradicts the right of sovereign

governments to make decisions on resource exploitation.‖ 37 This

language creates ambiguity around the question of whether a national

government‘s decision may trump that of the local community. This is

contrary to the FPIC principle that allows for communities to withhold

their consent. PanAust also couches its FPIC policy commitment with

similar language about the sovereignty of national governments with

regard to natural resource decisions.38

In interviews conducted by the authors, several companies claimed thattheir commitments require them to work towards consent but not

necessarily to respect a ―no‖ decision from local communities. Barrick

staff indicated that ICMM‘s position statement requires it to ―work toward‖

consent.

They say that in some project contexts where communities‘

opinions are divided, they may face ―practical challenges‖ that could

prevent them from securing full community consent. Nevertheless,

Barrick says that it ―strive[s] to ensure that decisions are made upon

mutual agreement with local populations when they are impacted.‖ 39

Similarly, Freeport-McMoRan staff expressed sensitivity to the word

―consent‖ and described FPIC as ―effective stakeholder engagement,‖40 and Gold Fields staff emphasized that the final say regarding project

development should go to the host government

(following appropriate

engagement with indigenous peoples and working toward obtaining their

consent).41 BHP Billiton staff differed slightly from others in their

response, agreeing that ultimately governments make mineral

development decisions but adding that the company would be unlikely to

proceed in the face of widespread opposition from indigenous

landowners.42

No policies offerunequivocalcommitments towithdraw from a projectif a community decides

to withhold consent.


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Box 2. FPIC policy implementation: Angkor Gold case study

A full review of company implementation of its FPIC policies falls outside

the scope of this research. However, Oxfam in Cambodia conducted

research to gather perspectives from a range of stakeholders on how

Canadian mining junior Angkor Gold applies its stated policy commitments

in practice and to better understand the challenges and opportunitiesrelated to FPIC implementation. The research revealed that the company

has not yet achieved FPIC from project-affected indigenous communities.

This is the case despite its stated commitment and the recognition of

indigenous peoples‘ land and forestry rights in Cambodian law.

As of January 2015, the company website stated that the company

implements FPIC in its engagement with indigenous peoples. It also

reported that it achieved FPIC to build an access road within a project-

affected community and continues to hold ―FPIC meetings‖ in the

communities. Although all four communities consulted by Oxfam reported

having had some engagement with Angkor Gold, none of them expressed

any awareness or familiarity of FPIC either as a concept or as a company

policy. Levels of awareness and understanding of the information provided

by the company varied considerably both across and within communities.

The majority of community members interviewed reported that engagement

by the company focused primarily on proposed community development

projects—such as water pumps, tanks, upgrades to schools, etc.—rather

than on decision making related to core mining operations and future plans.

Most interviewees felt that they had inadequate information and feared that

mining activities would continue without their consent using the protections

of the government granted licenses.

This case highlights the risk of the gap between policy and practice. FPIC

cannot be achieved without providing adequate information, ensuring all

affected communities are able to access and understand that information,

and providing affected community members the opportunity to deliberate,

seek outside counsel, have a clear and reliable channel of communication

to the company, and have the opportunity to give or withhold their consent

for the project. Although the Community Consent Index focuses only on

evaluating public corporate commitments, this case demonstrates that

policy implementation is an ongoing challenge that requires further

research and monitoring. Oxfam will continue to support research and

monitoring in the countries where we work.

Sources: Current Situation of Mining Industry in Cambodia, published by the General

Department of Mineral Resources (2013); Angkor Gold 2013 CSR Report,

http://www.angkorgold.ca/wp-content/uploads/2014/06/SCD-Report-2013_WEB-final.pdf.

http://www.angkorgold.ca/wp-content/uploads/2014/06/SCD-Report-2013_WEB-final.pdfhttp://www.angkorgold.ca/wp-content/uploads/2014/06/SCD-Report-2013_WEB-final.pdf


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Glen Poch, 28, with her nephew in Taing Se, where the ethnic Jerai farmers are concerned thatdevelopment may come in the form of mining by Angkor Gold. She says her village has the right to

manage their communal lands. ―I don‘t want anyone invading these lands.‖ Photo by Patrick

Brown/Panos for Oxfam America.

No oil and gas companies have made public commitments to FPIC

Oil and gas companies lag far behind their mining company peers in

terms of public commitments to FPIC. In 2012 Canadian oil company

Talisman Energy stood out among the crowd with a strong policy

commitment to FPIC, but with its recent acquisition by Repsol, it remains

to be seen whether and how its FPIC commitment will be incorporated.

Repsol currently uses somewhat stronger language than other oilcompanies but falls short of an FPIC commitment. It commits to free,

prior, and informed consultation, which Oxfam recognizes as being far

from FPIC and more akin to standard consultation and dialogue

processes. However, Repsol notes that consultation must be ―in good

faith and in a manner appropriate to the circumstances, in order to reach

agreement or achieve consent in relation to the measures proposed.‖43

Although several companies mentioned in interviews that they are

assessing the issue of FPIC, no oil companies surveyed have public

FPIC policies at present.

Some oil and gas companies claim that their practices align with the

concept of FPIC. These include BG Group,44 ConocoPhillips, and

ExxonMobil. For example, ConocoPhillips staff states that the company‘s

way of working is consistent with FPIC and noted that a discussion of

FPIC will be a core IPIECA priority in 2015.45 In addition, ConocoPhillips,

ExxonMobil, and Total policies claim that their company approaches are

consistent with ILO Convention 169 and UNDRIP.46 ExxonMobil also

claims that its policies are consistent with the IFC‘s performance

standards and states that they participate in the IPIECA task force on

FPIC.47 However, these companies do not provide detail about how their

approaches align with these international standards.


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As with the mining sector, most companies we interviewed refrained from

committing to respect the decision of a community to withhold consent,

but responses varied somewhat. BG Group staff states that they prefer to

avoid FPIC terminology because they see it as ―controversial,‖ but that in

fact BG Group ―would not develop a project without community support‖

and ―would never forcibly displace people.‖48 ExxonMobil staff explained

that it undertakes community consultation with the aim of achieving

consent but raised definitional difficulty in relation to the right to say no.

Where agreement and consent cannot be obtained, ExxonMobil states

that it adheres to the rule of law and attendant legal processes to

determine a path forward.49 Statoil claims to have internal requirements

and guidelines which make specific reference to FPIC and the IFC‘s

performance standards.50 When asked how they would respond to a

community decision to withhold consent, they noted that they take into

account the consent or approval of affected communities, for example

fishing communities in an offshore project, when conducting seismic and

other activities. At the same time, Statoil highlighted that the primary

responsibility for managing communities lies with government.

Company commitments on engagementwith all project-affected communities

This section examines company public commitments to engagement with

all project-affected communities. The review includes commitments that

apply more broadly than to indigenous peoples.

Twenty-two companies commit to seeking the support or agreement

of project-affected communities

Although oil, gas, and mining companies are reluctant to apply FPICunless their projects will affect indigenous peoples, more than half of the

companies in the sample make public commitments to seek the support

or agreement of local communities, regardless of whether they identify as

indigenous peoples. Some companies use the phrase ―broad community

support,‖ which generally refers to a collection of expressions by affected

communities in support of a proposed project. The World Bank coined

this term when it incorporated the standard in response to the World

Bank‘s Extractive Industry Review in 2004.51 Broad community support

(BCS) represents a lower standard than FPIC, since it is generally

interpreted by those seeking BCS as resting on an external determinationof community support rather than on community processes. However,

corporate commitments to seeking community support or agreement

represent a considerable advance beyond more basic commitments to

inform communities or even to consult them. In addition, this type of

commitment represents a useful basis upon which companies might

construct FPIC policies in the future.


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Figure 4. Corporate commitments to seeking community support or

agreement

Twenty-two companies (13 mining companies and 9 oil and gas

companies) commit to seeking community support or agreement for their

activities.52 Among these, language used by BHP Billiton and Rio Tinto

stand out as somewhat stronger and clearer than others. BHP Billiton

commits to ―obtain and document broad-based community support for

new operations or major capital projects before proceeding with

development.‖ Rio Tinto also uses language of broad-based community

support and states, ―We seek to reach a specific agreement with each

community on how it wants to engage with us in the development and

performance of our operations, including how each community may

express its support and concerns regarding our activities.‖53 Here Rio

Tinto notes the importance of ensuring that communities have some

influence on the company‘s method of determining whether they have

secured community support. In 2014, Oxfam researched the impact of

resettlement on a community in Mozambique. Rio Tinto was the owner of

the coal mine when most households (358) were resettled. Rio Tinto

purchased the mine in Mozambique in 2011 and undertook the

resettlement based on a government-approved resettlement action plan.

Interviewees made it clear that they had little or no influence over

decisions being made and did not support resettlement.54

The findings regarding company references to support and agreement

are consistent with those highlighted in recent research by Ethical

Corporation.55 Their survey of approximately 250 extractive industry

professionals found that ―95% of experts believe that social performance

should move beyond risk mitigation and focus on generating active

support from communities.‖ Survey respondents highlighted this issue as

the second greatest challenge for corporate social responsibility in

mining, oil, and gas (preceded only by the challenge of embedding social

performance in business culture). Clearly companies are beginning to

realize that community engagement must move beyond mere information

and consultation in order to be meaningful and effective.


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Table 2. Corporate commitments to seeking community support or

agreement

Mining companies Anglo American

AngloGold Ashanti*

Barrick

BHP Billiton

China Shenhua Energy

First Quantum Minerals

Glencore

Gold Fields

MMG

Newcrest

Newmont

Rio Tinto

Teck

Oil companies Anadarko**

BG Group

BP

Chevron*

Eni*

ExxonMobil

Occidental

PetroChina

Statoil

*Company commitment limited to circumstances where communities will beresettled.**Company commitment limited to a particular project.

Twenty-two companies refer to a social license to operate within

their public policies or statements.

Twenty-two companies—12 mining and 10 oil and gas—employ social

license to operate terminology in their policies or public statements or

both. Several companies also referred to this terminology in interviews. In

fact, Ernst and Young‘s recent report on business risks in mining and

metals includes ―social license to operate‖ as the third of the top 10 risks

for 2014, and number four among the top 10 risks over the past seven

years.56 Clearly, companies recognize significant potential risks to their

operations when they fail to engage with communities effectively.However, the way in which companies use the ―social license to operate‖

term varies considerably, creating a challenge for its application as a

standard.


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Figure 5. Companies that reference social license to operate

Some companies use ―social license to operate‖ to refer to their process

of engaging with project-affected communities and seeking their supportfor a project. However, other companies interpret the ―social‖ in ―social

license to operate‖ to extend beyond project-affected communities to

include stakeholders at the national or even international level. In an

online video, ConocoPhillips Canada‘s vice-president for environment

and sustainable development states: ―…how we produce oil and gas

remains very important, and the ‗how‘ refers to our environmental, our

social, and our financial performance, and that affects our reputation. Our

reputation in turn affects access to resource and access to markets and

we refer to that as our ‗social license.‘‖57 Here the term refers broadly to

maintaining a good reputation as influenced by a number of

stakeholders, rather than to the issues of community consent and respect

for community rights.

The industry has yet to settle on a clear, shared understanding of the

term ―social license to operate.‖ Research on social license and mining

produced by the University of Queensland found that ―What is contained

within the social license is poorly defined by industry. The parameters,

substance and governance aspects of the terms are rarely, if ever,

elaborated by proponents.‖58 Oxfam‘s research for this report found that

some companies use social license terminology to refer to community

support, whereas others applied the term to a wider range ofstakeholders than project-affected communities.

Eleven companies have yet to commit to either FPIC or to seeking

communi ty suppor t or agreement from project-affected

communities

All companies included in this brief commit to some level of community

consultation or dialogue in public statements regarding their relations

with project-affected communities. This reflects broad and nearly

ubiquitous recognition that community consultation is an integral aspect

of successful and sustainable extractive operations. Twenty companies

have a standalone community or community-relations policy.

All companies includedin this brief commit tosome level ofcommunity consultationor dialogue in theirpublic statementsregarding their relationsto project-affectedcommunities.


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However, 11 companies have yet to incorporate either FPIC or

community support or agreement into their policy commitments. These

companies include: Areva, ConocoPhillips, CNOOC, Iamgold, Petrobras,

Pluspetrol, Repsol, Shell, Total, Tullow, and Vale.59

Figure 6 illustrates the range of terminology that companies in the

sample use when describing their community-relations processes.

Although engagement appears most frequently, note that a sizable groupof companies refer to consent, support, or agreement. The majority of

companies in the sample appear to have recognized that although

community consultation is a necessary aspect of doing business, it is not

sufficient.

Figure 6. Company usage of community-relations terminology

Broader human rights commitments

Twenty-seven companies have human rights policies, and 29

companies commit to respecting indigenous peoples’ rights

Beyond recognition of FPIC, an increasing number of companies are

developing human rights policies. Twenty-seven companies have public

human rights policies (compared to 11 in Oxfam‘s 2012 Index), reflecting

the widespread uptake of the UN Guiding Principles on Business and

Human Rights. Introduced in June 2011, the Guiding Principles

highlighted the need and specifications for a policy framework for the

corporate responsibility to respect human rights. A number of companiesin the 2012 Index have since released human rights policies, including

Anglo American, AngloGold Ashanti, BHP Billiton, ConocoPhillips,


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Repsol, Shell, and Statoil. Having a business-wide human rights policy is

an important step in establishing a policy framework within which the

recognition of FPIC can eventually be realized. Among the 11 companies

in the sample that lack public human rights policies, 10 provide brief and

general descriptions of the company‘s approach to human rights60 or

make very limited reference to human rights, and one61 makes no

reference to human rights in its public commitments.

Figure 7. Corporate commitments and policies on rights

Twenty-nine companies included in the Index publicly commit to

respecting indigenous peoples‘ rights—ranging from a brief reference on

the company website to a dedicated section in the company-wide code of

conduct. Of the remaining nine companies, five62 make reference to

respecting indigenous peoples‘ cultures, and four 63 make no public

commitment regarding indigenous peoples. An explicit commitment to

indigenous peoples‘ rights acknowledges the special circumstances,conditions, and worldview experienced by indigenous peoples and the

need for particular protections of their collective rights, in addition to their

human rights as individuals. Recognition of the rights of indigenous

peoples should include the whole suite of indigenous rights as defined in

international law, including the right to FPIC. Given that the requirement

for indigenous peoples‘ FPIC is derived from indigenous peoples‘

collective rights and is necessary for their realization, it stands to reason

that the first step in the process of developing and implementing a

meaningful commitment to FPIC is to commit to respecting the human

rights of indigenous peoples.

Having a business-widehuman rights policy isan important step inestablishing a policyframework within whichthe recognition of FPICcan eventually be

realized.


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Indigenous Q'eq'chi village of La Paz, near Lake Izabal in eastern Guatemala. Village lies within aconcession made to a nickel mine where the community faced the possibility of being relocated.

Photo by Edgar Orellana.

Box 3. Human rights policy implementation: OceanaGold case

As we have noted, this report focuses on policy rather than practice.

However, Oxfam would like to flag one example of company behavior that

falls short of human rights policy requirements. OceanaGold explicitly

commits to respecting host country laws and regulations in its July 2014

human rights policy. However, the company has failed to respect the

sovereignty of the Salvadoran government regarding its involvement in theEl Dorado mining project, in the department of Cabañas. El Salvador‘s

government introduced a de facto moratorium on large-scale mining in the

country in 2007, with support from mining-affected communities, civil

society, and institutions like the Human Rights Ombudsman Office.

However, OceanaGold is currently challenging the government of El

Salvador at the World Bank‘s International Center for Settlement of

Investment Disputes with a claim of approximately $300 million. Mining

company Pacific Rim brought the case to the tribunal after the government

denied its mining application in light of non-compliance with requirements

of the country‘s Mining Law. OceanaGold knowingly injected itself into the

case with its purchase of Pacific Rim in 2013. At this report‘s writing, thedecision on the case is pending. This legal action highlights the gap

between OceanaGold‘s human rights policy and its practice, as well as the

conditional nature of its support for El Salvador‘s sovereignty and right to

make national development decisions.

Sources: OceanaGold Corporation, Human Rights Policy,

http://www.oceanagold.com/assets/documents/Governance/140630-OceanaGold-Human-

Rights-Policy-July-2104.pdf; Jillian Bunyan, ―Environmental Regulation and Investor State

Dispute Settlement Clauses‖ (November 17, 2014) http://www.gtlaw-

environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-

investor-state-dispute-settlement-clauses/; International Allies Against Mining in El Salvador,

―Debunking Eight Falsehoods by Pacific Rim Mining/OceanaGold in El Salvador‖ (March

2014) http://www.ips-dc.org/debunking_eight_falsehoods_by_pacific_rim_mining/.

http://www.oceanagold.com/assets/documents/Governance/140630-OceanaGold-Human-Rights-Policy-July-2104.pdfhttp://www.oceanagold.com/assets/documents/Governance/140630-OceanaGold-Human-Rights-Policy-July-2104.pdfhttp://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.ips-dc.org/debunking_eight_falsehoods_by_pacific_rim_mining/http://www.ips-dc.org/debunking_eight_falsehoods_by_pacific_rim_mining/http://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.gtlaw-environmentalandenergy.com/2014/11/articles/environment/environmental-regulation-and-investor-state-dispute-settlement-clauses/http://www.oceanagold.com/assets/documents/Governance/140630-OceanaGold-Human-Rights-Policy-July-2104.pdfhttp://www.oceanagold.com/assets/documents/Governance/140630-OceanaGold-Human-Rights-Policy-July-2104.pdf


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Many companies refer to international treaties and standards that

call for FPIC, even when they have failed to develop explicit FPIC

commitments

Some companies that lack explicit FPIC commitments have committed to

human rights treaties and instruments that require FPIC. For example, on

the mining side, First Quantum Minerals makes reference to UNDRIP. Oil

companies ConocoPhillips, ExxonMobil, and Total also make referenceto UNDRIP in their policies. Just half of the eight companies that refer to

UNDRIP in their policies also have public FPIC commitments,64 even

though FPIC is a central tenant of UNDRIP.

Eleven companies refer to ILO Convention 169 in their policies, five of

which are oil companies. Twenty-one companies refer to the IFC‘s

performance standards in their policies. Surprisingly, this group includes

eight oil companies and three mining companies (AngloGold Ashanti,

First Quantum Minerals, and Vale) that lack public FPIC commitments.

The IFC performance standards include a clear requirement for FPIC for

projects affecting indigenous peoples‘ lands and natural resources. Inorder to maintain policy coherence, all companies that refer to UNDRIP,

ILO Convention 169, or the IFC‘s performance standards should

incorporate an explicit commitment to FPIC in their policies. A

commitment to respect indigenous peoples‘ rights by definition should

imply a commitment to respect their decision-making processes and the

outcome of those processes, in other words their right to give or withhold

FPIC.


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Table 3. Corporate references to international treaties and standards

which call for FPIC

International

standard

Relevant language Company

references

United NationsDeclaration onthe Rights of

IndigenousPeoples

Calls on states to consult withindigenous peoples in order tosecure their FPIC prior to the

approval of projects affecting theirlands or resources and in relationto ―adopting and implementinglegislative or administrativemeasures that may affect them‖.

65

Angkor Gold Anglo AmericanConocoPhillips

ExxonMobilFirst Quantum MineralsMMGRio TintoTotal

InternationalLabourOrganizationConvention169 onIndigenous andTribal Peoples,

1989

Calls on states to consult withindigenous and tribal peoples forlegislative and administrativemeasures which may affect themdirectly (including with regard tosub-surface natural resources),with the objective of achieving

agreement or consent. RequiresFPIC for relocation, and when notobtained stipulates that relocationmust entail appropriate proceduresestablished by law providingeffective representation foraffected peoples (Articles 6, 15,16).66

ArevaBG GroupBHP Billiton**ConocoPhillipsEniGoldcorpGold Fields

RepsolRio TintoTeckTotal

InternationalFinanceCorporationPerformance

Standards onEnvironmentaland SocialSustainability

Requires clients to obtain the FPICof affected communities ofindigenous peoples when projectswill generate adverse impacts on

lands and natural resourcessubject to traditional ownership orunder customary use, entailrelocation of indigenous peoplesfrom lands and natural resourcessubject to traditional ownership orunder customary use, or maysignificantly impact critical culturalheritage.

67

Anadarko Angkor Gold Anglo American AngloGold Ashanti

BG GroupBHP Billiton*Chevron*ExxonMobilFirst Quantum MineralsGlencore*Goldcorp*Gold FieldsIamgoldNewmont*PanAustPluspetrolRio Tinto*

Statoil*TotalTullow Vale

* Reference specific to resettlement.** Limited to jurisdictions that have ratified the convention.


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Company commitmentsregarding gender issues

The extractive industries affect women and men differently. Women are

often at a particular disadvantage since they bear the brunt of the

negative impacts while receiving few, if any, of the benefits (such as

compensation for land or employment) and being excluded from

decision-making processes. The negative impacts of oil, gas, and mining

projects on women are too numerous to outline in this report and have

been detailed elsewhere.68 However, experience has shown that if

extractive companies do not specifically consider their impacts on

women‘s roles and responsibilities in the household and community, or

their particular needs and interests, they can cause significant adverse

effects. Women often face a number of institutional and societal barriers

to participation and decision making in natural resource management.69

Extractives companies that do not actively take these into account

through their engagement strategies will most likely perpetuate these

barriers and leave women at a further disadvantage.

Gender was not a strong focus for the majority of companies reviewed for

this report. Of the 38 companies included, most had very little to no

mention of gender (or the importance of engaging with women) in any of

the publicly available policy documents or guidelines. The remaining nine

companies (eight mining and one oil and gas) had some mention of

gender with regard to community engagement in either their codes of

conduct, community engagement or human rights policies, or

sustainability reporting (see Table 4).

Figure 8. Corporate commitments related to gender in community

engagement

In the policy documents we reviewed, companies expressed how they

engage with women and gender issues in a number of different ways.

Several companies stated in interviews that their community engagement

guidelines address how to engage women in consultation and decision-

making processes. However, the vast majority of these documents are

not publicly available, so the strength of the guidelines cannot beassessed. A common claim across companies was that gender concerns

are included in their broader commitments to engaging marginalized or

Of the 38 companiesincluded, most had verylittle to no mention ofgender (or theimportance of engagingwith women) in any ofthe publicly availablepolicy documents orguidelines.


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vulnerable groups. This is problematic not least because women make

up half the population and are not necessarily a marginalized or

vulnerable group. It also does not take into account the significant and

specific attention that gender analysis requires in order to mitigate

negative impacts and ensure equal participation.

Table 4. Corporate commitments related to gender in community

engagement

Category Companies

Stand-alone gender policy/guidelines Rio Tinto

Policy documents provide specificdetails about how the companyengages women and/or mitigatesgender impacts

Angkor Gold (Limited detail)

BHP Billiton

PanAust

Policy documents include womenwith other marginalised groups

AngloGold Ashanti

Anglo American

Barrick

RepsolTeck

Niama Makalu (22), with young Amidou Dembelle, tends to her crop next to a mine dump inSadiola, western Mali; August 2006. Photo: Brett Eloff.

A few companies suggested their community development programs

were beneficial to women, such as investment in local schools and

healthcare. Although this may be true, the importance of women‘s

involvement in setting the priorities for these initiatives cannot be

overstated. Research indicates that men and women often prioritize

community investments differently, and frequently more sustainable

development outcomes are achieved when women have an equal

engagement with men in setting priorities for community investments.70 A

few companies mentioned workforce issues as the primary focus of theirgender work.


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3 CONCLUDING REMARKS AND RECOMMENDATIONS

This report suggests that extractive industry companies are increasingly

seeing the relevance of FPIC to their operations. This includes morerobust engagement with the concept and an increasing number of

companies using the term. The number of companies with commitments

to FPIC has almost tripled since 2012. Importantly, this list now also

includes smaller, non-ICMM companies—a promising development that

again highlights wider acceptance of FPIC within the industry. However,

this trend masks a number of issues. First, the oil and gas sector is

clearly lagging in adopting FPIC policies, with no public commitments

from any of the companies included in this report. Second, although

policy commitments to FPIC are increasing, these lack detailed

implementation guidance, and some companies have reservationsrelating to the core right to withhold consent. Companies that use vague

and hedging language with regard to FPIC risk abusing a concept that

has been defined clearly by international bodies and law.

FPIC is a right of indigenous peoples that is enshrined in international

law, and as a principle it also represents best practice in relation to

community engagement with all project-affected communities. As we

have noted, no companies reviewed for this report have made public

commitments to uphold FPIC for non-indigenous project-affected people.

However, community engagement is recognized as being crucially

important for the sector, and the emergence of language aroundcommunity ―support‖ and ―agreement‖ shows a general upward trend.

Many company policies now require more than mere community

consultation, and require companies to seek community support as well.

Unfortunately, there is very little consensus across the industry in terms

of the language used in community support. Definitions of terms such as

―broad community support‖ and ―social license to operate‖ vary widely

between companies. This is problematic on a number of fronts. Without

clear commitments from companies to incorporate community input and

respect community decisions, and clear and public guidelines on

consultation process, it will be difficult for impacted communities to

influence company plans, participate in decision-making processes, and

negotiate benefit-sharing agreements. Furthermore, without a shared

understanding of the meaning behind these community engagement

concepts, the risk of conflict between and within communities is

increased and corporate accountability is weakened.

There are a number of considerations arising from this report that need

additional focus to ensure the extractive industries mitigate risks to

project-affected communities. First, in an industry that is characterized by

frequent mergers and acquisitions, it is important to consider issues

relating to legacy commitments and responsibility post-transfer. This has

implications at a policy level, as highlighted in the above example of


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Talisman Energy and Repsol. Shell‘s recent purchase of BG Group offers

another example that may have considerable policy implications in the

countries where BG Group operates. However, more importantly, it has

practical implications in terms of the impacts of an acquisition on a

community. Here it is important to note that FPIC is not a static process

and requires ongoing commitment and effort at all phases of the project

lifecycle, including on the part of the company taking over the project.

Second, as this report outlines, gender considerations at a policy level

are weak across the board. Mitigating the specific impacts of extractive

industry projects on women, as well as ensuring equal benefit and

involvement in decision making, requires concerted and comprehensive

attention. Without a clear and overarching commitment to gender,

companies risk contributing to or deepening existing gender inequalities.

These commitments should be publicly available so that there is clear

accountability in relation to the gender impacts of mining operations.

Ensuring that gender concerns are built in to all levels of business will

lead to both more positive sustainability outcomes, as well as reducerisks to businesses resulting from negative impacts on communities. A

company gender policy should commit the company to respect the rights

of both women and men, provide equal opportunity and equal access to

any benefits incurred by the project for both women and men, and

involve both women and men in consultation and decision-making

processes.

Based on the findings of this report, we suggest that stakeholders look at

strengthening their policy commitments relating to FPIC and community

engagement in the following ways:

To extractive industry companies:

• Adopt an explicit and unambiguous policy commitment to FPIC and

develop detailed accompanying implementation guidelines, making

these publicly available.

• Conduct thorough monitoring and evaluation of FPIC processes being

implemented and disclose information publicly in a language and form

understood by the community while these processes are underway.

• Develop clear and overarching commitments to gender that respect

the rights of both women and men, provide equal opportunity and

equal access to mining benefits for both women and men, and involveboth women and men in consultation and decision-making processes.

• Conduct project-level gender impact assessments to better

understand how operations may affect women and men, avoid

potential negative impacts, and enable mining projects to be more

responsive to women and men‘s needs and interests.

• Adopt a public human rights policy in alignment with the UN Guiding

Principles on Business and Human Rights, as well as an indigenous

peoples‘ policy committing the company to respect indigenous

peoples‘ rights.

• Guarantee the durability of FPIC practices after mergers and

acquisitions and respect legacy commitments and responsibility post-

transfer.


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• In keeping with the independent corporate responsibility to respect

human rights, avoid the temptation to hide behind inadequate

government legislation and practices in relation to indigenous peoples‘

rights and instead encourage governments to ensure that FPIC

processes are conducted at the earliest stages of land- and resource-

use planning and prior to the issuance of concessions or contracts.

•

Disclose adequate information to facilitate community decision-makingprocesses and project monitoring, including but not limited to all

contracts signed with host governments; environmental impact

assessment documents, as well as succinct summaries of these

documents in communities‘ preferred languages; and all company

payments to host governments.

To IPIECA:

• In line with industry best practice and in consultation with indigenous

peoples, develop specific guidance for the oil and gas sector

regarding FPIC and monitor implementation among members.

To ICMM:

• Review member commitments relating to FPIC and establish an

accountability system to monitor how member companies are

implementing these commitments.

• Encourage members to expand the application of their FPIC policies

beyond projects that affect indigenous peoples to projects with

potential adverse impacts on any local community.

• Regard its indigenous peoples and mining position statement as a

living document and initiate a consultative process with indigenous

peoples to assess its implementation and review and revise itscontent, in particular in relation to the rights-based expectations of

indigenous peoples with regard to ICMM member company

responsibilities in contexts where FPIC is not forthcoming.

To governments:

• States should adopt legislation that enshrines the FPIC principle for

oil, gas, and mining development. They should consult communities

and seek their FPIC prior to the award of oil blocks or mining

concessions.

•

All countries with indigenous peoples within their borders, andcountries whose companies affect indigenous peoples overseas,

should ensure that the UNDRIP is fully implemented by adopting the

appropriate legislative, administrative, and policy frameworks to

guarantee respect for indigenous peoples rights and implementation

of FPIC in the context of extractive industry activities.

• States should develop national action plans on business and human

rights and ensure that these call for FPIC and make reference to

UNDRIP and ILO Convention 169. This is particularly relevant for the

governments of countries that are home to extractive sector

multinationals.


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ANNEXESA. Summary table: Public corporate commitments

Company

Public commitments Public policies Public references to treaties/standards

FPIC

Community

support/

agreement

Indigenous

rights

Gender and

communities

Human

rights

policy

Community

relations policy

UN Declaration on

the Rights of

Indigenous

Peoples

ILO

Convention

169

IFC

Performance

Standards

Anadarko

Angkor Gold

Anglo American

AngloGold Ashanti

Areva

Barrick

BG Group

BHP Billiton

BP

Chevron

China Shenhua Energy

CNOOC

ConocoPhillips

Eni

ExxonMobil

First Quantum Minerals

Freeport-McMoRan


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34

Company

Public commitments Public policies Public references to treaties/standards

FPIC

Community

support/

agreement

Indigenous

rights

Gender and

communities

Human

rights

policy

Community

relations policy

UN Declaration on

the Rights of

Indigenous

Peoples

ILO

Convention

169

IFC

Performance

Standards

Glencore

Goldcorps

Gold Fields

IAMGOLD

MMG

Newcrest Newmont

Occidental

OceanaGold

PanAust

Petrobras

PetroChina

Pluspetrol

Repsol

Rio Tinto

Shell

Statoil

Teck

Total

Tullow

Vale


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35

B. Oxfam interviews with companies

Company Interview Date

Anadarko July 9, 2014

Angkor Gold July 10, 2014 Anglo American July 11, 2014

AngloGold Ashanti April 7, 2015

Barrick July 11, 2014

BG Group July 17, 2014

BHP Billiton October 1, 2014

BP July 23, 2014

ConocoPhillips December 18, 2014

Eni April 15, 2015

ExxonMobil September 19, 2014Freeport-McMoRan July 16, 2014

Glencore December 8, 2014

Goldcorps November 26, 2014

Gold Fields November 18, 201

community consent index 2015: oil, gas, and mining company public positions on free, prior, and...

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